Opinion
03-10-2016
In the Matter of David PRICHER, Petitioner, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.
David Pricher, Elmira, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
David Pricher, Elmira, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Opinion
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent finding petitioner guilty of violating certain prison disciplinary rules.
Petitioner, a prison inmate, commenced this CPLR article 78 proceeding challenging a prison disciplinary determination rendered upon two misbehavior reports. The first report charged him with violent conduct, assault, refusing to follow a direct order, failure to comply with frisk procedures and interfering with an employee, after he became involved in a physical altercation with correction officers during a strip search. The second report charged him with possessing drugs and possessing contraband, after petitioner spit four balloons out of his mouth during the strip search—two of which contained cigarette rolling papers and matches and the other two contained a green leafy substance that tested positive for marihuana. Following a tier III disciplinary hearing on both reports, petitioner was found guilty as charged and this determination was affirmed on administrative appeal.
We confirm. Initially, to the extent that petitioner raises the issue of substantial evidence, we find that the misbehavior reports, hearing testimony and related documentation, including the positive test results, support the determination of guilt (see Matter of Fragosa v. Moore, 93 A.D.3d 979, 980, 939 N.Y.S.2d 668 [2012]; Matter of Black v. Goord, 302 A.D.2d 648, 648, 753 N.Y.S.2d 770 [2003] ).
Turning to petitioner's procedural challenges, the record reflects that the misbehavior reports were properly endorsed (see 7 NYCRR 251–3.1[b]; Matter of Lindo v. Fischer, 72 A.D.3d 1295, 1296, 903 N.Y.S.2d 543 [2010] ) and sufficiently detailed to allow him to prepare an adequate defense (see 7 NYCRR 251–3.1[c]; Matter of Basbus v. Prack, 112 A.D.3d 1088, 1088, 976 N.Y.S.2d 336 [2013]; Matter of Hernandez v. Prack, 108 A.D.3d 965, 966, 969 N.Y.S.2d 242 [2013] ). Accordingly, contrary to petitioner's contention, the misbehavior reports were not defective because they failed to reference the confidential information that prompted the initial search (see Matter of Horne v. Fischer, 98 A.D.3d 788, 789, 949 N.Y.S.2d 814 [2012]; Matter of Muller v. Fischer, 62 A.D.3d 1191, 1191–1192, 881 N.Y.S.2d 188 [2009] ). Any deficiency in his employee assistance was cured by the Hearing Officer, who provided petitioner with the documents that he had requested (see Matter of Lashway v. Fischer, 117 A.D.3d 1141, 1142, 984 N.Y.S.2d 655 [2014]; Matter of Hart v. Fischer, 89 A.D.3d 1357, 1358, 934 N.Y.S.2d 533 [2011], lv. denied 18 N.Y.3d 808, 2012 WL 952792 [2012] ). Finally, there is no indication in the record that the Hearing Officer was biased or that the determination flowed from any alleged bias (see Matter of Dolan v. Annucci, 120 A.D.3d 870, 871, 990 N.Y.S.2d 417 [2014] ). Petitioner's remaining contentions are either unpreserved or lack merit.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.